Storming the Beaches

istock.com | DACowley

A noted law professor argues it’s high time to overturn a controversial 1989 low-water mark in Maine judicial history.

By Edgar Allen Beem

In 1984, 45 shorefront cottage owners on Moody Beach sued the town of Wells and the state of Maine to establish their right to keep people out of the intertidal zone in front of their homes — that’s the portion of the beach that lies between the mean high tide and mean low tide marks. In most states, the intertidal zone is public, and that was the common understanding in Maine until 1989, when the Maine Supreme Judicial Court settled Bell v. Wells in the cottage owners’ favor, ruling 4–3 that the public’s right to the intertidal zone was limited to “fishing, fowling, and navigation,” activities enumerated in the 1641–1647 Colonial Ordinance of Massachusetts.

It did not escape the notice of Maine residents that a group of cottage owners, most from Massachusetts, had become annoyed by throngs of beachgoers, many of them from Massachusetts, and that a Massachusetts law apparently gave Maine’s intertidal lands to private individuals. It was as if Maine were still part of Massachusetts.

Many legal scholars, Maine citizens, and the state itself thought the decision was wrong. Nonetheless, Bell v. Wells effectively means that anyone strolling in the intertidal zone might want to take along a fishing rod, duck boat, or shotgun just to be on the safe side.

Now, 28 years later, Orlando Delogu, professor emeritus at the University of Maine School of Law, argues in a new book, Maine’s Beaches Are Public Property: The Bell Case Must be Reexamined (forthcoming from Tower Publishing, Standish), that not only did the Maine Supreme Court make a huge mistake, but so did the attorneys for Wells and Maine, who represented the public interest. “I firmly believe a reexamination of the errors and the issues ignored by the Bell courts will lead a reexamining court to conclude that title to intertidal lands in Maine is held by the state in trust for the public,” Delogu writes.

Delogu’s standing to argue his case is substantial. He taught land use, property, and environmental law for more than 50 years; he served on Maine’s Board of Environmental Protection, the Portland City Council, and Portland Planning Board; and he filed a friend-of-the-court brief in the Moody Beach case, as well as every other case involving intertidal lands since 1981.

Delogu argues that the court and the defendant attorneys erred by conceding that upland owners owned the intertidal zone in the first place. The errors begin, he writes, “with a too casual dismissal of legal principles that have existed more than 1,500 hundred years” — namely that public assets like the air, navigable waters, and intertidal lands can’t be owned.

Rather than argue that Moody Beach cottagers never owned the intertidal zone in the first place (as Delogu believes they should have done), lawyers for the state and town argued that “public use reservations” in the Colonial Ordinance included recreation, like swimming and playing games.

Delogu makes the case that, prior to Maine’s separation from Massachusetts, the courts did not apply the Colonial Ordinance the way the Maine Supreme Court did and that, even if they had, Maine wasn’t bound by the Colonial Ordinance after statehood.

Delogu’s new book urges courts to recognize ‘that title to intertidal lands in Maine is held by the state in trust for the public.’

What’s more, he writes, the Maine Supreme Court ignored not only 1,500 years of legal principle, but also half a dozen U.S. Supreme Court decisions, a 1975 Maine submerged lands law, and itself. In a 1981 opinion, three years before the Bell lawsuit, the Maine Supreme Court stated, “Navigation, fishing, and fowling were the historical purposes for which the public trust principle was developed in the common law. Those public uses of intertidal and submerged lands remain important, but others have grown up as well. The press of an increasing population has led to heavy demands upon Maine’s great ponds and seacoast for recreational uses.”

The Bell decision comes up time and again along the Maine coast as competing users come into conflict over who has the right to do what in the intertidal zone. In 2011, for example, the Maine Supreme Court ruled that an Eastport scuba diver had the right to cross the intertidal zone of a neighbor’s property to get to the water. In a higher-profile 2012 decision involving Goose Rocks Beach in Kennebunkport, Superior Court Justice G. Arthur Brennan ruled that public rights had expanded to include jet-skiing, water-skiing, knee-boarding, surfing, windsurfing, boogie boarding, rafting, tubing, paddle boarding, and snorkeling, though not swimming, bathing, wading, walking, picnicking, or playing games. Then in 2014, Brennan’s decision was overturned by the Maine Supreme Court.

Delogu is too polite to note what the legal community and news media knew in 1989: that the four members of the Maine Supreme Court who ruled in favor of the Moody Beach cottage owners themselves owned shorefront property. The three who dissented did not. Instead, he calls the Bell decision an honest mistake based on a misreading of legal history and on prior decisions that were themselves mistaken.

In Maine’s Beaches Are Public Property, Delogu urges the Maine Supreme Court to use the occasion of any pending case related to the intertidal zone to effectively overrule Bell and correct a judicial mistake that continues to have tremendous implications for public access to the shore. Now 80, Delogu says advancing age prompted him to write the book, in the hopes that some enterprising young lawyer might be inspired to find the right litigant and take up the fight.

He’s not alone in his thinking. Chief Justice Leigh Saufley, who was a student at the University of Maine School of Law when Delogu was teaching, has made it clear that she believes the Bell decision was wrong. In a 2000 decision that established public use on another beach in Wells, Saufley wrote, “Pursuant to our holding in Bell, a citizen of the state may walk along a beach carrying a fishing rod or a gun, but may not walk along that same beach empty-handed or carrying a surfboard. This interpretation of the public trust doctrine is clearly flawed.”

“In summary,” Saufley continued, “common sense and sound judicial policy dictate that our holding in Bell should be overruled now, in order to preclude continuing uncertainty, expense, and disputes.” And yet, the Bell decision still stands (and Saufley was chief justice in 2014 when the court overruled that more liberal definition).

Delogu plans to lobby the legislative and executive branches in hopes of getting someone to take up his cause, but ultimately, he says, he places his faith in Maine’s people. “I want the public to clamor, ‘We own the intertidal lands. The upland owners do not!’”